IN THE COURT OF APPEAL OF THE REPUBLIC OF SINGAPORE...the Criminal Procedure Code (Cap 68, 2012 Rev...

IN THE COURT OF APPEAL OF THE REPUBLIC OF SINGAPORE

[2019] SGCA 27

Criminal Reference No 5 of 2018

Between

PUBLIC PROSECUTOR… Applicant

And

DINESH S/O RAJANTHERAN… Respondent

GROUNDS OF DECISION

[Criminal Procedure and Sentencing] — [Criminal references]

[Criminal Procedure and Sentencing] — [Plead guilty procedure] — [Qualification of plea]

This judgment is subject to final editorial corrections approved by the court and/or redaction pursuant to the publisher’s duty in compliance with the law, for publication in LawNet and/or the Singapore Law Reports.

Public Prosecutorv

Dinesh s/o Rajantheran

[2019] SGCA 27

Court of Appeal — Criminal Reference No 5 of 2018Sundaresh Menon CJ, Judith Prakash JA and Steven Chong JA 5 March 2019

23 April 2019

Sundaresh Menon CJ (delivering the grounds of decision of the court):

Introduction

1 This was a criminal reference brought by the Public Prosecutor (“the

Prosecution”) to refer two questions concerning the interpretation of s 228(4) of

the Criminal Procedure Code (Cap 68, 2012 Rev Ed) (“CPC”) to the Court of

Appeal. Section 228(4) of the CPC, which was enacted as part of a suite of

changes to the CPC in 2010, provides as follows:

Where the court is satisfied that any matter raised in the plea in mitigation materially affects any legal condition required by law to constitute the offence charged, the court must reject the plea of guilty.

2 The Prosecution contended that s 228(4) of the CPC did not apply to an

accused person who, having pleaded guilty to an offence, then wished to change

his mind. According to the Prosecution, such a person would be obliged to apply

to the court to be allowed to retract his guilty plea and to set aside his conviction.

PP v Dinesh s/o Rajantheran [2019] SGCA 27

2

If the court declined to allow the application, then the accused person would not

be permitted to advance anything in his mitigation plea that would be

inconsistent with his guilty plea. Were it otherwise, an accused person would

be able, in effect, to circumvent the need to make an application for leave to

retract his guilty plea by simply asserting facts in mitigation which were

inconsistent with his earlier plea of guilt. The Prosecution contended that this

should only be permitted if the accused person had valid and sufficient reasons

for retracting his guilty plea. The High Court Judge (“the Judge”) who heard the

respondent’s petition for criminal revision in this case disagreed with this

position, and held that the unambiguous language of s 228(4) of the CPC made

it clear that the court was compelled to reject a guilty plea as long as matters

raised in the mitigation plea materially qualified the earlier plea of guilt.

3 After hearing the submissions of the parties, we reformulated and

answered the two questions referred in the manner set out below at [71]–[72].

We agreed with the Judge that the respondent’s conviction should be set aside

and the matter remitted to the State Courts for trial. We now give the reasons

for our decision.

Background facts

4 The respondent in this case faced 63 charges under s 22A(1)(a) of the

Employment of Foreign Manpower Act (Cap 91A, 2009 Rev Ed), for having

received from foreign employees a sum of $2,000 (per employee) as a condition

for their employment by two marine companies, of which the respondent was a

senior executive. The respondent initially claimed trial to these charges, and the

trial commenced in the State Courts before the District Judge.


3

5 On the second day of the trial, the respondent’s counsel at that time,

Mr Kalidass Murugaiyan, sought an adjournment to consider a plea offer

communicated by the Prosecution. The respondent subsequently pleaded guilty

to 20 proceeded charges, and admitted to the statement of facts without

qualification after some clarifications were made at the request of Mr Kalidass.

The respondent was accordingly convicted on his plea.

6 The Prosecution then made its submissions on sentence before the

District Judge, following which Mr Kalidass sought a further adjournment for

the respondent’s mitigation and sentencing submissions to be made on another

date. This was done notwithstanding the fact that Mr Kalidass had already

prepared a written mitigation plea highlighting the respondent’s personal

mitigating circumstances, such as the fact that he had a pregnant wife and aging

parents to support. This first mitigation plea did not contain any assertions that

in any way qualified the original guilty plea.

7 The District Judge adjourned the sentencing hearing to be heard on

another date. Following the respondent’s conviction, the Prosecution allowed

several foreign witnesses who had been scheduled to testify at the trial to return

to Myanmar.

8 Before the adjourned sentencing hearing took place, Mr Peter Fernando

took over conduct of the defence from Mr Kalidass, and he informed the court

that he had been instructed by the respondent to make an application at the next

hearing for permission to retract his guilty plea. On the District Judge’s

directions, the parties furnished written submissions in connection with the

intended application.


4

9 The respondent’s submissions for retraction stated that he “disputes the

following material allegations against him”:

I. that he received directly from each of the foreign employees named in Table A of the Statement of Facts a sum of SGD$2,000 each, as a condition for their employment as reclamation workers by the respective companies as stated in Column E;

II. that the accused knew that each of the named 20 foreign employees had each paid a sum of about 4 million kyat (equivalent to about SGD$4,000) as agent fees to an employment agent in Myanmar known as “Soe Hla” in order to get their jobs as seaman in Singapore;

III. that the accused had any knowledge that Soe Hla passed envelopes to the said foreign employees stating that there were sums of monies in the envelopes and that they were to pass the envelopes to the accused upon their arrival in Singapore;

IV. that the accused knew that the said envelopes contained money that were from the foreign employees’ agent fees which were paid to Soe Hla;

V. that the accused knew that each of the said foreign employees had contributed SGD$2,000 out of the SGD$4,000 in agency fees to be paid to the accused in order for them to secure their jobs with the companies and to come over to Singapore to work; and

VI. that the accused had collected the sums of money as a condition for the employment of the said foreign employees and that he (the accused) was aware that he was not to do so.

According to the submissions, these assertions “materially affect the legal

conditions of the alleged offences”, and hence the court was “obliged under law

to reject the [respondent’s] guilty plea” pursuant to s 228(4) of the CPC. There

was evidently some confusion in the position taken by Mr Fernando who cited

s 228(4) even though he did not appear to be making any mitigation

submissions.


5

10 The Prosecution’s written submissions on the other hand referred

exclusively to the principles governing an application to retract a guilty plea as

laid down in Ganesun s/o Kannan v Public Prosecutor [1996] 3 SLR(R) 125

(“Ganesun”). The Prosecution argued that the application should be disallowed

because the respondent’s plea had been validly taken, entirely in compliance

with the three procedural safeguards: the respondent had pleaded guilty in his

own voice and words; he had understood the nature and consequences of his

plea; and he had done so intending to admit the commission of the offences

without qualification. No mention of s 228(4) was made in the Prosecution’s

written submissions.

11 When the parties returned to court, the District Judge sought clarification

from Mr Fernando as to whether he was putting forth an application to retract

the guilty plea, or whether the respondent was in fact putting forward matters in

mitigation that would qualify his guilty plea. The District Judge indicated that

he would not be minded to allow the application if Mr Fernando was pursuing

the former course but that he might be compelled to reject the guilty plea in the

event the position was the latter. Mr Fernando informed the District Judge that

even though the application was termed as one to retract the guilty plea, in fact,

his intention was indeed to raise matters in mitigation that would effectively

qualify the respondent’s guilty plea. The matter was then adjourned for

Mr Fernando to prepare a written mitigation.

12 A written mitigation plea was subsequently tendered on the respondent’s

behalf, in which the respondent once again disputed the six material allegations

against him that had been mentioned in the submissions for retraction of plea

(see [9] above).


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13 The District Judge refused to reject the respondent’s guilty plea, noting

that the procedural safeguards relating to his plea had been observed. The

District Judge opined that the mitigation plea in reproducing the six grounds of

dispute “was not done in good faith and was done with the view to compelling

[the] Court to reject the plea of guilty” pursuant to s 228(4) of the CPC, and as

such this was an abuse of process on the respondent’s part and a “backdoor way

to turn back the clock” and resile from his guilty plea. The District Judge

sentenced the respondent to a fine of $12,000 (in default one month’s

imprisonment) for each of the 20 proceeded charges, for a total fine of $240,000

(in default 20 months’ imprisonment). He also made an order requiring the

respondent to disgorge the sum of $40,000 (in default 40 days’ imprisonment),

which was the aggregate amount he was found to have received in respect of

the 20 charges.

14 Dissatisfied with the District Judge’s decision, the respondent filed a

petition for criminal revision (HC/CR 8/2018) to the High Court on the basis

that the District Judge had erred in law “in rejecting [the] application for

retraction of plea of guilt and/or the qualification of [the] plea of guilt”.

Decision of the Judge

15 At the hearing of CR 8/2018, the respondent confirmed that he was no

longer pursuing the application to retract the guilty plea. The focus of the

hearing was thus on the qualification of the guilty plea by reason of matters

advanced in the respondent’s mitigation and sentencing submissions.

16 The Judge set aside the conviction and in his written grounds of decision

in Dinesh s/o Rajantheran v Public Prosecutor [2018] SGHC 255 noted that

while the language in s 228(4) of the CPC appeared unambiguous, the


7

controversy in this case had arisen out of a line of cases holding that an accused

person could not retract his plea of guilty except where valid and sufficient

grounds were advanced to satisfy the court that it was proper and in the interest

of justice that he be allowed to do so.

17 The Judge disagreed with the Prosecution’s position that since the

respondent’s mitigation submissions were in essence an application for the

retraction of his guilty plea, s 228(4) of the CPC was inapplicable. The Judge

considered that this was contrary to the language of s 228(4), and further rested

on an impossible distinction being drawn between a mitigation plea that was

tantamount to a retraction of plea and a mitigation plea that was not. After all, a

guilty plea that was qualified in any way was effectively a plea of not guilty and

it could not be that a court was obliged by s 228(4) of the CPC to reject a plea

of guilty where the mitigation submissions qualified one or more (but not all)

of the elements of the offence, but not where the mitigation submissions

disputed all the elements of the offence.

18 Accordingly, given that the respondent’s mitigation submissions did

qualify his plea of guilt, the Judge found that the District Judge ought to have

rejected the respondent’s plea. The Judge accordingly set aside the respondent’s

conviction and remitted the matter to the State Courts for trial.

The questions referred

19 The Prosecution then filed the present criminal reference to refer the

following questions of law of public interest to us pursuant to s 397(2) of the

CPC:


8

(a) Question 1: Does s 228(4) of the CPC apply to a case where an

accused person seeks to retract his plea of guilty at the mitigation stage

of sentencing?

(b) Question 2: Must an accused person seeking to retract his plea

of guilty at the mitigation stage of sentencing satisfy a court that he has

valid and sufficient grounds for his retraction before the court can reject

his plea of guilty?

The parties’ cases

The Prosecution’s case

20 The Prosecution took the position that s 228(4) of the CPC applied only

when an accused person makes a genuine “plea in mitigation”, which is a plea

for a lower sentence. In such circumstances, the accused person does not intend

to challenge the validity of his prior plea, but rather raises facts for the purposes

of seeking leniency, and these facts happen incidentally to cast doubt on the

validity of the guilty plea despite the accused person’s intention to stand by that

plea and to be sentenced accordingly. On the other hand, where an accused

person changes his mind about pleading guilty and seeks to retract his guilty

plea during the mitigation stage, he no longer wishes to be sentenced on the

basis of his earlier plea of guilt and does not in fact enter a submission that is

directed towards mitigation at all; and s 228(4) would accordingly not be

engaged in such circumstances.

21 Further, the Prosecution argued that the Judge’s interpretation of

s 228(4) had the effect of reversing the position established in Ganesun, that an

accused person seeking to retract his guilty plea must establish valid and

sufficient grounds for doing so. This was said to be an essential position that


9

should continue to be maintained in order to guard against abuses of process,

and facilitate the efficient administration of criminal justice. For example, this

would prevent an accused person from undertaking tactical ploys by effectively

forcing the court to reject his guilty plea in the hope that witnesses might

become unavailable. There was no indication that Parliament intended this

position to be overturned when s 228(4) of the CPC was enacted.

22 On the Prosecution’s case, the literal text of s 228(4) was capable of

accommodating the foregoing interpretation, in that the court should not be

“satisfied” that a “legal condition required by law to constitute the charge” was

“materially affect[ed]” unless the accused person had provided valid and

sufficient reasons to explain why his earlier plea should be set aside. We observe

that the effect of this seemed to be to disentitle an accused person who disputed

material elements of the offence to which he had pleaded guilty, from relying

on s 228(4). When probed, the Prosecution appeared to maintain that would be

so, unless such an accused person nonetheless wished to plead guilty. In sum,

s 228(4) would prevent an accused person who subjectively wished to plead

guilty from doing so, if he disputed any element of the offence, so that such an

accused person would have to go to trial; however, the section would not apply

at all to an accused person who no longer wished to plead guilty because he

disputed a material element of the offence, so that such a person could not go to

trial without first showing valid and sufficient reasons to set aside his guilty

plea. Seen in this way, s 228(4) appeared to us to be a provision that must have

been designed to frustrate the subjective wishes of any accused person who had

pleaded guilty but then, before sentence, wished to dispute a material element

of the offence. This seems to us an improbable way to construe the provision;

and it also does not seem to be in line with the plain meaning of the words used

in s 228(4).


10

23 In any case, the Prosecution accordingly took the position that Question

1 should be answered in the negative, and Question 2 should be answered in the

affirmative.

The respondent’s case

24 The respondent on the other hand emphasised that the language in

s 228(4) of the CPC was unambiguous and did not leave room for us to accept

the Prosecution’s position. Cases that were decided before the enactment of

s 228(4) of the CPC, such as Ganesun, were readily distinguishable on that

basis. Thus, Question 1 should be answered in the affirmative.

25 Given the mandatory language of s 228(4) which required the rejection

of a guilty plea where any matter raised in the course of mitigation materially

affected any legal condition constituting the offence, it was not for the judge to

limit the accused person’s right to advance whatever grounds he might wish in

his mitigation submissions, or to first require that sufficient grounds or valid

reasons be advanced by the accused person to justify his mitigation being

advanced in this way. The court could certainly seek to understand why the

change of position came about, but having obtained such clarification it could

not limit the accused person’s right to advance his mitigation as he thought fit;

and if that qualified the guilty plea, then s 228(4) would apply and prevent the

court from convicting the accused person. Thus, according to the respondent,

Question 2 should be answered in the negative.

26 Further, where an application to retract a plea was made prior to

sentencing, the court would not be functus officio, and thus concerns such as

finality carried far less importance. In such circumstances, where a guilty plea


11

had been qualified, the court should as a matter of course remit the case for the

trial to proceed on a contested basis.

Our decision

The literal and logical interpretation of s 228(4) of the CPC

27 The first port of call in any exercise of statutory interpretation is clearly

the words of the relevant provision, and here it is important to recall the text of

s 228(4) of the CPC as well as, for context, the preceding and subsequent

subsections which we reproduce here for easy reference:

Division 3 – Plead guilty procedures

Procedure if accused pleads guilty, etc.

227.—(1) If the accused pleads guilty to the charge after it has been read and explained to him, whether as originally framed or as amended, his plea must be recorded and he may be convicted on it.

(2) Before the court records a plea of guilty, it must —

(a) if the accused is not represented by an advocate, be satisfied that the accused —

(i) understands the nature and consequences of his plea and the punishment prescribed for the offence; and

(ii) intends to admit to the offence without qualification; or

(b) if the accused is represented by an advocate, record the advocate’s confirmation that the accused —

(i) understands the nature and consequences of his plea; and

(ii) intends to admit to the offence without qualification.

…


12

Address on sentence, mitigation and sentence

228.—(1) On the conviction of the accused, the prosecution may where it thinks fit address the court on sentence.

(2) The address on sentence may include —

(a) the criminal records of the accused;

(b) any victim impact statement; and

(c) any relevant factors which may affect the sentence.

(3) The court must then hear any plea in mitigation of sentence by the accused and the prosecution has a right of reply.

(4) Where the court is satisfied that any matter raised in the plea in mitigation materially affects any legal condition required by law to constitute the offence charged, the court must reject the plea of guilty.

(5) After the court has heard the plea in mitigation, it may —

(a) at its discretion or on the application of the prosecution or the accused hear any evidence to determine the truth or otherwise of the matters raised before the court which may materially affect the sentence; and

(b) attach such weight to the matter raised as it considers appropriate after hearing the evidence.

(6) The court must then pass sentence according to law immediately or on such day as it thinks fit.

…

28 It is important to note at the outset, as the Judge correctly pointed out,

that the literal words of s 228(4) leave very little room for any exercise of

judicial discretion. Simply put, once the provision is properly invoked, the court

must reject the plea of guilty. It is true that the relevant condition is that the court

must first be “satisfied that any matter raised in the plea in mitigation materially

affects any legal condition required by law to constitute the offence charged”.

Admittedly, the court might not be so satisfied in a given case. But the court’s

role in this context is confined to considering whether what is said in the plea in

mitigation in fact “affects any legal condition required by law to constitute the


13

offence.” In our judgment, the effect of this is clear: the court may only consider

whether the averments in the mitigation submissions have the effect of

materially affecting the validity of any essential element or ingredient of the

offence. Once this is answered in the affirmative, the plain words of s 228(4)

lead to the conclusion that, at least as a general rule, the court must then reject

the guilty plea, and by extension, terminate the mitigation stage of the

proceedings. We briefly consider the limits of this general rule at [67] below.

29 However, we are not satisfied that the plain text of s 228(4) permits the

introduction of requirements which are not otherwise found in the words of the

provision, and the effect of which would be to wholly undermine the mandatory

nature of s 228(4). Yet, this was the effect of the Prosecution’s submissions.

This was also the position taken by the High Court in Public Prosecutor v

Mangalagiri Dhruva Kumar [2018] SGHC 62 at [23]:

If there were indeed no valid or sufficient reasons for retraction, then the legal conditions to constitute the offence were unaffected, let alone “materially affect[ed]” under s 228(4) CPC.

30 With respect, this position cannot be correct. It is clear that the legal

conditions required by law to constitute the offence refer to the elements of the

offence, specifically the mens rea and actus reus of the offence. It would not

cohere with the clear words and ordinary meaning of s 228(4) to find that the

court in determining whether or not the elements of the offence have been

materially affected by matters raised in the mitigation plea, may have regard to

circumstances external to the mitigation plea, such as the accused person’s

reasons for advancing a mitigation plea that is inconsistent with the elements of

the offence to which he had earlier pleaded guilty.

31 In that light, we turn to consider the relevant case law on the point. Yong

Pung How CJ in Toh Lam Seng v Public Prosecutor [2003] 2 SLR(R) 346 (“Toh


14

Lam Seng”) (at [9]) observed that “a statement which discloses the possibility

of a defence does not always qualify a plea of guilt.” Likewise, Chao Hick Tin

JA (as he then was) in Md Rafiqul Islam Abdul Aziz v Public Prosecutor [2017]

3 SLR 619 (“Md Rafiqul”) at [34] suggested that the court might examine

whether the point raised has any substance:

…the requirement in s 228(4) of the CPC, that the matter raised in the plea in mitigation should “materially affect any legal condition required by law to constitute the offence charged” before the court is mandated to reject the plea of guilty, allows the court in such an event to examine whether the point raised in mitigation has any substance. As in Toh Lam Seng ([28] supra), this ensures that not every ostensible defence raised in mitigation would prevent the court from convicting the accused on the charge to which he has pleaded guilty.

32 In Toh Lam Seng, the accused person had pleaded guilty to a charge of

voluntarily causing hurt under s 323 of the Penal Code (Cap 224, 1985 Rev Ed),

but stated in mitigation that the victim had “severely provoked him such that he

could not control his emotions” (at [12]). On a petition for criminal revision,

Yong CJ found that the facts advanced by the accused person fell short of

satisfying the requirements for the defence of grave and sudden provocation,

but merely gave rise to mitigating circumstances. In other words, the court

considered whether, as a matter of law, the assertions in the mitigation

submission could amount to a defence such that it might qualify the guilty plea

and concluded that they did not. Thus the notional defence in that case, was

found to be without substance.

33 Similarly, in Balasubramanian Palaniappa Vaiyapuri v Public

Prosecutor [2002] 1 SLR(R) 138 (“Balasubramanian Palaniappa”), Yong CJ

did not agree that the accused person’s assertion in his mitigation plea that he

“had a lot to drink” meant the mens rea for the offence had been negated. In

both these cases, the accused person’s assertions in mitigation were found, in


15

fact, not to qualify his earlier plea of guilt, and the question of setting aside his

conviction on that basis simply did not arise. If these cases had been decided

after the enactment of s 228(4), the court would not have been “satisfied” that

what was raised in mitigation had materially affected the legal conditions of the

offence, and thus would not have been compelled by s 228(4) to reject the plea.

This in fact was the point made by Chao JA in Md Rafiqul in the passage we

have cited at [31] above.

34 This interpretation of s 228(4) is also consistent with the observations of

the High Court in Koh Bak Kiang v Public Prosecutor [2016] 2 SLR 574 (“Koh

Bak Kiang”) (at [19]), that the question of whether a plea has been qualified

cannot be determined based on the assertions of counsel during the hearing, but

“must be a conclusion drawn from an analysis of the substance of what was said

by or on behalf of the accused person at the time he pleads guilty” [emphasis in

original]. In other words, the inquiry is an objective one, to be undertaken by

comparing what was accepted by the accused person in the charge and statement

of facts, with the substance of what he subsequently asserted in the course of

his mitigation. The subjective intention of the accused person, or the court’s

opinion as to the factual guilt of the accused person, simply do not enter into

consideration at all. In Koh Bak Kiang, the accused person had pleaded guilty

to a charge of trafficking in diamorphine. In mitigation, counsel for the defence

submitted that the accused person did not know the precise nature of the drugs.

This plainly affected a material ingredient of the offence but the court proceeded

to accept the guilty plea upon counsel’s assurance that the accused person did

not intend to qualify his guilty plea. This was incorrect and the conviction was

later set aside by the High Court.


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The correct philosophical approach

35 The Prosecution’s narrow interpretation of s 228(4) seemed to us to rest

on the supposed sanctity of the conviction which is obtained upon the accused

person’s plea of guilt, and which should not be disturbed unless there was a flaw

in the procedure by which that conviction had been obtained. Not only did this

narrow interpretation render s 228(4) otiose or ineffectual, as we explain at [44]

below, we also considered that this reflected an erroneous understanding of the

relevant procedure and indeed of the court’s special responsibility and function

throughout this phase of the proceedings.

36 The relevant part of the CPC in which s 228 is found is entitled “plead

guilty procedure”. It is noteworthy that in the course of the plead guilty

procedure, the taking of the plea of guilt and the conviction of the accused

person on this basis necessarily precedes the sentencing of the accused person.

However, this does not entail the conclusion that the pronouncement of the

conviction gives rise to a strict separation or bifurcation in the proceedings. In

our judgment, the whole plead guilty procedure should be seen as a continuum

that begins with the taking of the accused person’s plea to the charge and his

admission of the statement of facts, and continues through the conviction and

the mitigation submissions and finally culminates in the pronouncement of the

appropriate sentence. It is the continuing duty of the court to be vigilant and to

ensure that the accused person maintains the intention to plead guilty throughout

this process. The court’s duty does not change between the pre-conviction stage

and the sentencing stage of the proceedings. Rather, the court must oversee the

entire procedure right up to the point that the accused person is sentenced at

which point the case is disposed of. Only then is the court functus officio.


17

37 Understanding this fundamental philosophical point has significant

implications on the interpretation of s 228(4). The Prosecution’s primary

argument against the Judge’s interpretation of s 228(4) of the CPC was that it

would undermine a line of authorities most commonly attributed to Ganesun,

which stood for the proposition that an accused person will not be allowed to

retract his plea of guilt unless he can show valid and sufficient grounds for doing

so, such as where the three procedural safeguards (now entrenched in s 227(2)

of the CPC) concerning the validity of the plea have not been complied with. It

is also well-established in the case law that the validity of a plea may be

undermined where, despite formal compliance with these procedural

safeguards, there may be “real doubts as to the applicant’s guilt or that the

applicant had been pressured to plead guilty in the sense that he or she did not

genuinely have the freedom to choose how to plead” (Yunani bin Abdul Hamid

v Public Prosecutor [2008] 3 SLR(R) 383 (“Yunani bin Abdul Hamid”) at [50],

[55]–[56], [59]; Chng Leng Khim v Public Prosecutor and another matter

[2016] 5 SLR 1219 (“Chng Leng Khim”) at [8]).

38 However, once the mitigation and sentencing process is regarded as part

and parcel of the plead guilty procedure as a whole in the manner outlined

above, it becomes clear that the Prosecution’s concerns are not valid. Section

228(4) does not displace or undermine the existing case law pertaining to the

validity of plea, but rather crystallises a further safeguard which would need to

be complied with before the plea can be safely accepted by the court as the legal

basis for a conviction. This is not an additional or hitherto unknown safeguard

or requirement but rather is one that has long been entrenched in this area of the

law. This was explained as follows in Koh Bak Kiang at [41]–[43]:

41 A qualified plea of guilt is in fact a plea of not guilty: see the decision of the English Court of Appeal in Regina v Durham Quarter Sessions, ex parte Virgo [1952] 2 QB 1 at 7. The plea of


18

guilt of an accused person carries with it grave implications. By it, the accused waives his right to be convicted only after a full trial. In such abbreviated proceedings, the Prosecution no longer needs to adduce evidence to prove the accused person’s guilt and the court may pass sentence on the accused without hearing a further word of testimony. The accused is also precluded from appealing against his conviction even if he subsequently comes to regret the plea, so long as the plea is not set aside.

42 Given these grave consequences that flow upon a plea of guilt, it is unsurprising that the law imposes a strict duty on the judge recording the plea to ensure that “the accused understands the nature and consequences of his plea and intends to admit without qualification the offence alleged against him” (see s 180(b) of the CPC 1985). This is not a mere technicality but a crucial procedural safeguard that is not to be taken lightly. …

43 The subjective views of the judge or of the Prosecution as to the factual guilt of the accused or the likelihood of the success of his potential defences are irrelevant to the propriety of the accused’s plea of guilt. As V K Rajah JA (as he then was) observed in XP v PP [2008] 4 SLR(R) 686 at [98], the guilt of the accused is determined “on the sole basis of legal proof and not mere suspicion or intuition”. What follows from this is that a court may only come to the conclusion that the accused is guilty when there is a legal basis for it. A qualified plea does not afford such a basis. …

39 The Prosecution was right to say that s 228(4) of the CPC was not

intended to introduce drastic changes to the law. Yet, it is established law that

if a mitigation plea qualifies the earlier plea of guilt by indicating the lack of

either the necessary mens rea or actus reus, the accused person would not be

taken to have admitted to the offence without qualification and the plea would

be rejected by the court (Ulaganathan Thamilarasan v Public Prosecutor

[1996] 2 SLR(R) 112; Balasubramanian Palaniappa at [29]). In this

connection, we respectfully agree with and endorse the observations of Chao JA

sitting in the High Court in Md Rafiqul at [27]–[31]:

27 What then is the position if the accused has pleaded guilty, but raises facts in his mitigation plea that may contradict the elements of the charge? Prior to the enactment


19

of s 228(4) of the CPC, the position was laid down in case law. In Balasubramanian Palaniappa Vaiyapuri v PP [2002] 1 SLR(R) 138, Yong Pung How CJ stated (at [29]):

…The law in Singapore is that, if the mitigation plea qualified the earlier plea of guilt by indicating the lack of mens rea or actus reus, the accused would not be deemed to have admitted to the offence without qualification and the plea would be rejected by the court: Ulaganathan Thamilarasan v PP [1996] 2 SLR(R) 112.

…

30 From the above, it may be observed that if and when a plea of guilt is in fact qualified in mitigation, the actual plea is that of “not guilty” and the court ought not to convict the accused on the charge. …

31 With the enactment of s 228(4) in 2010, the above approach to guilty pleas that have been qualified in the course of mitigation has been codified. …

Thus, both before and after the 2010 CPC amendments, a qualified plea of guilt,

including one that is qualified at the mitigation stage, is effectively a plea of not

guilty, and the court simply cannot regard such a plea as a legal basis for a

conviction.

40 In our judgment, the Judge’s interpretation of s 228(4) did not

undermine Ganesun and the related authorities, but restated the position

correctly in the light of the case law which establishes that the court’s duty in a

plead guilty procedure is a continuing one which persists until the accused

person is both convicted and sentenced. In this regard, we again gratefully adopt

the observations of Chao JA in Md Rafiqul (at [34]–[38]), which in our view

correctly interprets s 228(4) of the CPC in the proper context of the plead guilty

procedure as a whole:

34 …The combined purport of ss 227(2) and 228(4) of the CPC is that at all stages of the plead guilty procedure – both when the plea is being taken and during mitigation – the court must be cautious to ensure that the accused intends to


20

unequivocally admit to the offence alleged against him without qualification before convicting and sentencing the accused on the charge.

35 Thus, the legal position prior to, and after, the enactment of s 228(4) of the CPC remains broadly similar (in that a plea of guilt must be unequivocal), and s 228(4) codifies the position by making it compulsory for the court to reject a guilty plea if it is satisfied that “any matter raised in the plea in mitigation materially affects any legal condition required by law to constitute the offence charged”.

36 To summarise the above legal principles, a court ought not to accept an accused’s guilty plea in the following (non-exhaustive) circumstances:

(a) where the court is not satisfied that the accused understands the nature and consequences of his plea (see s 227(2) of the CPC);

(b) where the court is not satisfied that the accused intends to admit to the offence without qualification (see s 227(2) of the CPC);

(c) where the court is satisfied that the accused has qualified his plea in mitigation (see s 228(4) of the CPC);

(d) where the accused pleaded guilty based on a mistake or misunderstanding; and

(e) where the accused did not plead guilty voluntarily.

…

38 … The fact that there was an adjournment between the recording of a conviction and the sentencing process does not change the legal character of the proceeding before the court; the court is not functus officio until it has passed sentence.

Problems with the Prosecution’s position

41 The Prosecution’s position, that s 228(4) was only applicable where an

accused person actually intended to be sentenced on his earlier plea and put

forth a plea for a more lenient sentence, was also unsatisfactory for three other

reasons. First, we repeat the observation we have made at the end of [22] above,

as to the effect of the Prosecution’s submission as we understood it. We consider


21

it implausible that this is the correct interpretation of s 228(4) for the reasons

stated there.

42 Secondly, the Prosecution’s argument that a purported mitigation plea

that does not evince a genuine intention to seek a lower sentence is not a

mitigation plea at all, places undue emphasis on the intention of the accused

person, and sits uneasily with the procedural emphasis of the CPC. It is evident

that Division 3 of the CPC, the relevant portions of which have been cited at

[27] above, relates to “plead guilty procedures” [emphasis added], and that the

purpose of these provisions is to establish the procedure that is meant to be

followed where an accused person pleads guilty. Interpreting s 228(4) as being

circumscribed in its application by whether the accused person harboured a

genuine intention to plead for a lighter sentence, as opposed to being applicable

where the proceedings are at the stage where the accused person was meant to

be pleading for a lighter sentence, is incongruent with the procedural nature of

these provisions and of the CPC in general.

43 There is also no principled basis for such an undue focus on the

subjective intentions of the accused person. The emphasis in the case law both

prior to and following the enactment of s 228(4) of the CPC has been on whether

relevant matters that were raised during mitigation, that is, the stage of the plead

guilty procedure that follows the conviction but before an accused person is

sentenced, had the effect of qualifying the earlier guilty plea. This is evident

from the paragraphs of Md Rafiqul we have cited above, and also in Ganesun

(at [14]):

Moreover, the discretion [to allow a retraction of plea] exists so long as the court is not functus officio. Since the court is not usually functus officio until sentence is passed, a withdrawal of the plea of guilt, even though unequivocal, can be entertained


22

at the stage of mitigation or at any time before the case is finally disposed of by sentence [emphasis added]

44 Thirdly, the effect of the Prosecution’s interpretation of s 228(4) of the

CPC is to render it either otiose or ineffectual. If the Prosecution is correct in its

contention, then it would follow that whenever the accused person raises a point

in his mitigation submission that has the effect of qualifying his guilty plea, he

would first need to apply for and obtain the permission of the court to retract his

earlier guilty plea. But once such permission was obtained, the matter would

proceed to trial on a contested basis and s 228(4) would no longer apply,

rendering it otiose. On the other hand, if such permission was denied, the court

would presumably ignore the point that the accused person wished to make in

his mitigation plea, or prohibit him from making it, which would be flatly

contrary to the terms of s 228(4) and render it wholly ineffectual.

45 On either basis, s 228(4) would have no real function at all, which would

render it redundant and also be impossible to reconcile with the mandatory

language of the provision itself.

A categorical analysis of the precedents

46 The Prosecution relied on a variety of precedents stemming from

Ganesun as consistently standing for the broad proposition that an accused

person does not have a right to change his mind about a guilty plea at any stage

after a conviction, unless he can prove that the earlier plea of guilt was in some

manner or form invalid. From this, the Prosecution reasoned that since an

accused person cannot retract his plea except by showing valid and sufficient

grounds for doing so, he must therefore be prohibited from achieving the same

outcome indirectly by qualifying his guilty plea in the course of mitigation. We


23

have explained above why this reasoning was incorrect as a matter of principle

and statutory interpretation.

47 Upon closer inspection of the cases, it became clear that these too, when

properly understood, do not support the Prosecution’s interpretation of s 228(4).

Notably, none of the cases brought to our attention involved a situation where

an accused person qualified his plea during mitigation by asserting inconsistent

facts, and the court nonetheless upheld the plea and conviction. The only cases

that concerned s 228(4) were Koh Bak Kiang and Md Rafiqul, which we

consider at [61]–[64] below, and the guilty plea and conviction were set aside

in both cases. To explain this, we analyse the cases in three different categories.

First category – post-sentence retraction of plea

48 In the first category, which encompasses the bulk of the cases cited by

the Prosecution, the accused persons had pleaded guilty to the offences in

question and had subsequently been convicted and sentenced on that basis. At

the post-sentence stage, the accused persons had then sought to retract their

guilty pleas, whether by casting doubt on the validity of the plead guilty process

or by otherwise denying their guilt. Such cases would typically be dealt with by

an appellate court presented with a petition for criminal revision against the

conviction, although such assertions have at times also arisen as incidental

attacks on the conviction during an appeal against sentence (see, for instance,

Sukla Lalatendu v Public Prosecutor and another matter [2018] 5 SLR 1183

(“Sukla Lalatendu”)).

49 In our judgment, these cases may be readily explained. At the post-

sentence stage, the court will almost inevitably take a dim view of the accused


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person’s assertions, for the more obvious inference to be drawn in such

circumstances will commonly be that the accused person had simply come to

regret his decision to plead guilty, after the specific sentence had been imposed,

and therefore wished to take his chances at trial. To put it bluntly,

disappointment over a sentence different from one that was hoped for is never

an acceptable basis for allowing an accused person to seek belatedly to retract a

plea of guilt (Chng Leng Khim at [12]; Sukla Lalatendu at [47]). The court

rightly acts to safeguard the integrity of the conviction and sentence in these

cases, having regard to the fact that this variety of cases and the allegations that

underpin them will almost necessarily impinge on the integrity and finality of

the judicial process. As Yong CJ noted in Public Prosecutor v Oh Hu Sung

[2003] 4 SLR(R) 541 (in discussing the statutory prohibition against the

alteration of judgments in s 217 of the Criminal Procedure Code (Cap 68, 1985

Rev Ed) which in modified form can now be found in s 301 of the CPC), the

“principle of finality of proceedings, as encapsulated in s 217(1), should

generally be observed unless it is clear that a miscarriage of justice will

otherwise result” (at [28]).

50 Thus, in this category of cases, the court will take pains to guard against

improper attempts to mount a criminal revision as a form of “backdoor appeal”

against a conviction by accused persons who had pleaded guilty to the charges

brought against them. The court’s revisionary powers will only be exercised in

cases of serious injustice (Balasubramanian Palaniappa at [35]; Sun Hongyu v

Public Prosecutor [2005] 2 SLR(R) 750 at [9]; Md Rafiqul at [45]).

51 In this category of cases, it will be rare for an accused person’s

conviction to be set aside at the post-sentence stage, whether he seeks to achieve

this by challenging the regularity of the plead guilty procedure or by asserting

facts inconsistent with the elements of the offence and maintaining his


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innocence. This has only been allowed in exceptional cases, such as where the

court was satisfied on the evidence that the accused person did not have the

genuine freedom to plead guilty (see, for example, Chng Leng Khim and Yunani

bin Abdul Hamid).

Second category – pre-sentence retraction of plea by challenging the validity of the plead guilty procedure

52 In the second category of cases, an accused person after having been

convicted on a guilty plea but before he has been sentenced, puts forth assertions

or allegations attacking the integrity of the plead guilty procedure, and seeks on

this basis to retract his guilty plea. In such cases, given the seriousness of any

allegations that aim to cast doubt on the legality and propriety of legal

proceedings, the court will take steps to ascertain the truth of the matter. This

duty is particularly heightened when allegations of impropriety are made against

judicial officers, for reasons which were made clear in Sukla Lalatendu (at [1]):

In criminal appeals, it is unfortunately the case that allegations of impropriety are sometimes made against the judges and judicial officers who had presided over the matters in question in the courts below. Occasionally, the allegations may have some basis and, in such cases, it may be found that they have arisen out of some genuine miscommunication or misunderstanding or conceivably even from improper conduct of the matter. More commonly, however, such allegations are borne out of desperation and are contrived efforts on the part of the accused to avoid a conviction and/or sentence that was appropriately imposed. Whatever the case may be, appellate courts need to be especially careful in dealing with these allegations. While due weight should be given to the policy of finality and the need to prevent an abuse of the court’s processes, the prudent approach in dealing with such cases is to carefully consider the allegations and their basis to assess whether they merit closer scrutiny, so that any miscarriage of justice may be promptly corrected if the allegations are borne out, or if they are not, then the relevant appeal or application may be dismissed, if necessary with appropriate observations. It is only in this way that the hard-won reputation and standing of our judiciary can be vigorously protected.


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53 Similarly, where grave allegations are made against counsel, such as in

alleging that the defence counsel had in any way induced or pressured the

accused person into pleading guilty against his will, there is a strong public

interest in investigating these claims unless these are inherently unbelievable,

and to ensure that counsel is given an opportunity to respond to the allegations

(see Thong Sing Hock v Public Prosecutor [2009] 3 SLR(R) 47 at [1], [32]). In

any case, the court should satisfy itself as to whether what has been asserted is

factually true. Depending on the nature of the allegations grounding the accused

person’s application, the court would usually require the adduction of sworn or

affirmed evidence by the relevant persons, to assist the court in its inquiry into

the veracity of the accused person’s allegations (Sukla Lalatendu at [20]).

54 In this category of cases, the onus will be on the accused person to

adduce sufficient evidence to convince the court that his plea of guilt was

invalid. This is simply a consequence of the fundamental rule of evidence that

he who asserts a fact bears the burden of proving it. Ganesun is a case that falls

into this category, and since the Prosecution placed great reliance on it in

support of its position, we consider it more closely.

55 The appellant in Ganesun, a hawker who operated a food stall, was

charged with employing a foreign national who had overstayed his visit pass.

The appellant pleaded guilty to one charge under s 57(1)(e) of the Immigration

Act (Cap 133, 1995 Rev Ed), with a second similar charge being taken into

consideration for the purposes of sentencing. The appellant admitted to the

statement of facts without qualification. The matter was then adjourned for

sentencing and bail was extended. When parties reappeared in court for the

sentencing hearing, the appellant informed the court through his new counsel

that he wished to retract his earlier plea on the basis that (a) the appellant was

not the employer but an employee of the stall’s licence-holder, and (b) the


27

appellant had pleaded guilty because he was not confident that the documents

he needed for his defence would arrive in time for the trial. The trial judge

rejected the appellant’s application to retract his plea, and sentenced the

appellant accordingly. The appellant then appealed against the trial judge’s

refusal to retract his plea.

56 On appeal, Yong CJ opined that the trial judge did not err in refusing to

allow the retraction, because the procedural safeguards assuring the validity of

the plea had been complied with. There was no doubt that the appellant himself

had wished to plead guilty, and nothing to suggest that he had failed to

appreciate the material facts of the case. There was no mistake or

misunderstanding, and no ground on which the appellant should be allowed to

retract his plea. The appellant’s purported reason for pleading guilty on the basis

that he was not confident of getting the relevant documents in time for trial was

not credible, as it was a reason that had been advanced for the first time on the

day of sentencing, and in any case any such concern ought to have been dealt

with by an application for adjournment.

57 It should be noted that nothing was said in Ganesun in respect of any

question of qualification of the guilty plea by reason of matters raised in the

course of the mitigation submissions. Even though there was some mention

before the trial judge that the appellant was not an employer but rather an

employee of the stall’s licence-holder, there was no discussion in the judgment

as to whether this was something that would have amounted to a qualification

of plea. We would imagine that if the appellant in Ganesun had actually asserted

in mitigation that he in fact had no ability to employ the Sri Lankan national and

did not do so, this would have amounted to a qualification of his plea as it

materially affected the legal condition of an offence under s 57(1)(e) of the

Immigration Act; and on the view we have taken of the relevant legal position,


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the trial judge would have been compelled in these circumstances to reject the

earlier guilty plea. There was, however, no discussion on this point in Ganesun,

and the case was dealt with on the basis that the appellant was seeking to retract

his earlier plea despite his earlier admission to the relevant facts, and this failed

because the court disbelieved his central assertion as to why he had admitted

those facts.

58 A similar analysis could be applied to Koh Thian Huat v Public

Prosecutor [2002] 2 SLR(R) 113 (“Koh Thian Huat”). The accused person in

that case had pleaded guilty to a charge of theft in dwelling, and was convicted

accordingly. During the sentencing hearing, the accused person indicated that

he wished to retract his guilty plea, explaining that he did not have the intention

to steal and had simply forgotten to pay for the goods. The judge asked the

accused person why he had pleaded guilty, and he replied that he had been

prevented by the court interpreter from communicating his lack of intention to

steal to the court. The judge rejected the application to retract his plea. Upon the

accused person’s petition for criminal revision, Yong CJ noted that a revisionary

court must guard its revisionary jurisdiction from abuse, and rejected the

accused person’s version of facts due to the various inconsistencies that it was

affected by (at [21]–[22]). Significantly, Yong CJ rejected the allegation that

the accused person had been prevented from communicating his version of

events to the court by the court interpreter, and observed that the ordinary

safeguards had been complied with (at [24]–[30]). Again, there was no

discussion in the judgment pertaining to the qualification of a guilty plea in the

context of mitigation submissions.

59 Although the accused persons in both Ganesun and Koh Thian Huat

made factual assertions during the sentencing hearing which appeared to be

inconsistent with facts contained in the respective statement of facts and which


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were material to the offence, it would appear that the central point being made

was that the plea-taking process had been undermined in a material way and this

was rejected on the facts. To the extent factual averments were advanced that

might have qualified the guilty plea, this seems to have been done to explain the

case they would be running if they succeeded in setting aside their respective

convictions, rather than to advance mitigation submissions that qualified the

earlier guilty pleas. There was simply no discussion in either case on the effect

of a mitigation plea that contained such a qualification of an earlier guilty plea.

These cases therefore cannot be relied on as authority for the proposition that

accused persons who qualify their plea in the course of mitigation would have

to first apply for permission to retract their guilty plea with valid and sufficient

grounds. In any case, both these cases pre-date the enactment of s 228(4) of the

CPC, and may be distinguished on that basis as well (see Md Rafiqul at [41]).

60 It is evident from the foregoing that the first two categories of cases,

which cover the vast majority of cases that were cited by both parties, stand

apart from cases that would properly fall within the ambit of s 228(4). The

principles stated in these cases should be understood in their proper context and

should not affect the analysis concerning the application of s 228(4), which is a

distinct third category that we now discuss.

Third category – qualification of plea during mitigation

61 The third category of cases is what we would consider to be true cases

of a qualification of plea during mitigation, where an accused person puts forth

assertions in mitigation that qualify his guilty plea because they are inconsistent

with material elements of the offence. It is unsurprising that reported judgments

on cases in this category, as distinct from the earlier two categories, are few and

far between. We would imagine that in the majority of cases, a qualification in


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the mitigation plea would simply have led to the trial judge rejecting the plea

and fixing the matter for trial. This is undoubtedly the right approach, and one

that is ordinarily mandated by s 228(4) of the CPC.

62 In our judgment, only two of the cases cited to us fall within this third

category. The first is Koh Bak Kiang, although the analysis in that case took

place in a very different context. As outlined above, the accused person had

pleaded guilty to two charges of trafficking in diamorphine, and asserted in

mitigation that he did not know the precise nature of the drug that he was

trafficking in, having been led to believe that it was a drug other than

diamorphine. The accused person nonetheless maintained that he was not

qualifying his plea of guilt, and was convicted and sentenced on his plea. Some

six and a half years after pleading guilty, the accused person filed a criminal

motion before the High Court seeking an extension of time to appeal against his

conviction. By the time the matter came for hearing, the Prosecution and

Defence were agreed that the convictions were wrongful because the accused

person had in fact qualified his plea of guilt, and that the convictions should be

substituted with reduced charges of attempted trafficking in a controlled drug

other than diamorphine. The High Court accepted that the proposed course of

action was fair and just in the circumstances and so ordered.

63 In Koh Bak Kiang, the accused person had in fact tendered a mitigation

plea that contained details as to how he had been deceived by a third party into

carrying diamorphine, and how he had actually seen customers take ice,

ketamine and ecstasy from the packages he delivered but never diamorphine.

This was clearly a case where the accused person had in fact qualified his plea

of guilt when he maintained in mitigation that he did not know he had been

carrying diamorphine. In effect, he was asserting that he did not have the

requisite mens rea for the trafficking charges. The subjective views of the judge


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or the Prosecution of the factual guilt of the accused person, or the likelihood of

success of his potential defence, were irrelevant to the propriety of the accused

person’s plea of guilt (at [43]). The proper course of action for the trial court in

Koh Bak Kiang ought to have been to reject the plea on the basis that it had been

qualified in mitigation, and to proceed to try the accused person on the charges

faced (at [48]). This would have been the inevitable consequence of the

qualifications contained in the accused person’s mitigation plea, and there

would be no further need for the accused person to demonstrate valid and

sufficient grounds to retract his plea before his mitigation plea was allowed to

have this effect. Notably, both the Prosecution and Defence in Koh Bak Kiang

accepted that this was the proper course, and the decision of the High Court to

set aside the conviction is wholly consistent with the view we have taken in

these grounds.

64 Md Rafiqul was another case which fell within the third category. The

accused person in that case pleaded guilty to and was convicted of a charge of

making a fraudulent claim for compensation under the Work Injury

Compensation Act (Cap 354, 2009 Rev Ed), on the basis that he had claimed

compensation for a work accident that had not in fact occurred. When he

returned to court for the sentencing hearing, his counsel at that time informed

the court that he wished to retract his guilty plea as matters which would be

highlighted in mitigation would materially affect the legal conditions required

to constitute the charge. Specifically, the accused person wished to maintain that

the work accident did in fact take place, although on a different date as stated in

his claim for compensation, and thus that he did not have the requisite mens rea

for the offence. In other words, the accused person intended to qualify his plea

in mitigation. The District Judge did not allow this, and reasoned that the

accused person ought not to be allowed to qualify his plea on the basis that he


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had not done so immediately after the statement of facts was read, but rather at

the adjourned hearing scheduled for the purpose of making submissions on

sentence. Upon the accused person’s petition for criminal revision, the

conviction was set aside. Chao JA held that it was evident that where an accused

person had pleaded guilty but then raised a point in mitigation which materially

affected any legal condition required by law to constitute the offence charge,

s 228(4) is engaged and the court is mandated by law to reject the guilty plea

and allow the accused person to claim trial (at [32]). Chao JA considered that

this was precisely what had happened in that case, and s 228(4) therefore

applied “squarely to the facts” of the case such that the District Judge ought to

have rejected the plea (at [37]).

65 The preceding analysis of the cases based on the three identified

categories further addresses the Prosecution’s submissions, which we do not

accept, that the Judge’s interpretation of s 228(4) was inconsistent with case

authority. Rather, the majority of the cases relied on dealt with scenarios that

did not concern the application of s 228(4).

Abuse of process

66 It would have become abundantly clear from the foregoing that we

disagreed with the Prosecution’s position that s 228(4) of the CPC does not

compel the court to reject a plea that has been materially qualified in mitigation

unless the accused person is able to demonstrate valid and sufficient reasons for

a retraction of his plea. Rather, we are satisfied that where an accused person

asserts facts in mitigation, which do qualify his guilty plea in the sense that these

undermine a legal condition which constitutes a material element or ingredient

of the offence, the court, at least as a general rule, is bound to set aside the earlier

guilty plea.


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67 We frame this as a general rule because we would add one qualification

to this interpretation of s 228(4). The court has an inherent jurisdiction to ensure

the observance of the due process of law, and to prevent the abuse of its

processes (see Chee Siok Chin and others v Minister for Home Affairs and

another [2006] 1 SLR(R) 582 at [30]–[34]; Gabriel Peter & Partners (suing as

a firm) v Wee Chong Jin and others [1997] 3 SLR(R) 649 at [22]). Thus, where

a court is satisfied that an accused person’s conduct amounts to an abuse of

process, it is not compelled to reject a qualified plea notwithstanding s 228(4).

Whether or not the accused person’s conduct amounts to an abuse of process

would necessarily be a fact-sensitive inquiry. In the context of the present

application and the questions that were referred, there was no basis or reason

for us to say more.

Operational difficulties

68 The Prosecution raised concerns that the Judge’s interpretation of

s 228(4) would present various obstacles to the effective administration of

justice in future cases. For example, the Prosecution in this case had allowed the

foreign witnesses to return to Myanmar following the respondent’s conviction.

We were told this might impede the Prosecution at any subsequent trial if the

return of the witnesses to Singapore could not be procured. We were also told

that in a separate ongoing case, a foreign witness had flown to Singapore to

testify against the accused person and had thereafter returned home after the

accused person pleaded guilty on the first day of trial, only to have the accused

person apply to retract his plea after having seen the statement of facts. This,

the Prosecution argued, resulted in wasted expenses in securing the foreign

witness’ attendance in Singapore, and also allowed the accused person to gain

an unfair tactical advantage by having sight of the Prosecution’s case, since the

statement of facts might contain details that had not been revealed during the


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pre-trial disclosure stage. Further, an accused person might otherwise prolong

and delay proceedings for tactical reasons, to avoid just punishment or even to

force a change of judge. We were unpersuaded by these concerns.

69 To the extent that an accused person’s actions reveal an abuse of process,

this will not be tolerated, as we have already made clear at [67] above. We

would only add that some of the difficulties raised by the Prosecution are

capable of being addressed by the adoption of appropriate practices. For

example, witnesses should not be released after conviction but rather only after

an accused person has been sentenced, for it is at that stage that one can be

certain that the plea and conviction would not be set aside unless there were

good reasons to do so. Where there is a concern over securing the attendance of

foreign witnesses who are unable to remain in Singapore for a prolonged period,

the Prosecution might consider making an application to expedite the timelines

for the plead guilty procedure.

70 Further, to the extent that there are concerns over wastage of public

resources because of the need for foreign witnesses, the incidence of abortive

guilty pleas might be reduced by ensuring as far as possible that the taking of

the plea is followed immediately by the sentencing hearing. Once it is

communicated that the accused person wishes to take a certain course of action,

both parties should be ready to make submissions on sentence and in mitigation

before the start of the plead guilty procedure. If for any reason the sentencing

hearing has to be adjourned, then it would be prudent for the plead guilty

mention to be adjourned as well and re-fixed on the same date immediately

before the sentencing hearing.


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Conclusion

71 For the foregoing reasons and in consultation with the parties, we

reformulated the questions referred by the Prosecution as follows:

(a) Does s 228(4) of the CPC apply to a case where an accused

person seeks to qualify his plea of guilt, at the mitigation stage of

sentencing, to such an extent that it amounts to a retraction of his plea

of guilt?

(b) Must an accused person seeking to qualify his plea of guilt in the

manner aforesaid, at the mitigation stage of sentencing, satisfy the court

that he has valid and sufficient grounds for doing so, before the court

may reject his plea of guilt?

72 We answered the reformulated questions as follows:

(a) Yes, it does, save where the court is satisfied that the conduct of

the accused person amounts to an abuse of the process of the court.

(b) No, because it is sufficient that the mitigation plea materially

affects a legal condition of the offence.

Sundaresh Menon Judith Prakash Steven ChongChief Justice Judge of Appeal Judge of Appeal


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Kow Keng Siong, Kelvin Kow and Senthilkumaran Sabapathy (Attorney-General’s Chambers) for the applicant;

Peter Keith Fernando, Renuga Devi & Kavita Pandey (Leo Fernando) for the respondent.

IN THE COURT OF APPEAL OF THE REPUBLIC OF SINGAPORE...the Criminal Procedure Code (Cap 68, 2012 Rev...

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